Copeland-Brooks, P. v. ERA One Source Realty ( 2019 )

J-A28005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PATTI COPELAND-BROOKS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERA ONE SOURCE REALTY :
:
Appellant : No. 627 MDA 2018
Appeal from the Order Entered March 16, 2018
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2014-7307
BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED: JANUARY 28, 2019
ERA One Source Realty (ERA) appeals from the order, entered in the
Court of Common Pleas of Luzerne County, denying its motion to strike the
judgment entered in favor of Patti Copeland-Brooks (Brooks). The court
denied relief because ERA failed to challenge an arbitration award within the
30-day appeal period provided under Pa.R.C.P. 1307.1 After our review, we
affirm.
On June 18, 2014, Brooks, represented by John P. Rodgers, Esquire,
filed a complaint against ERA, seeking reimbursement for fees, commissions
and expenses, amounting to $15,792.09, pursuant to an oral employment
agreement. ERA filed an answer and new matter on August 16, 2014, and
____________________________________________
1 Rule 1307(c) provides: “If no appeal is taken within thirty days after the
entry of the award on the docket, the prothonotary on praecipe shall enter
judgment of the award.” Pa.R.C.P. 1307(c).
J-A28005-18
two and one-half years later, on February 27, 2017, Brooks filed a reply to
new matter.
Brooks filed a certification for arbitration, and the matter was scheduled
for a hearing on July 17, 2017. The arbitration certification listed ERA’s
counsel of record as: Jason M. O’Malley, Esquire, 310 Spruce Street, Suite
201, Scranton, PA 18503, 570-955-0055. That same name and address was
listed on the praecipe for appointment of arbitrators.
On July 17, 2017, the arbitrators awarded a default judgment in favor
of Brooks in the amount of $15,276.39. The award, filed on July 17, 2017,
indicated that it was mailed to all parties that same day. See Arbitration
Award, 7/17/17. On September 18, 2017, Attorney Rodgers filed a praecipe
for entry of final judgment, noting that the award was not appealed by ERA.
See Praecipe for Final Judgment, 9/18/17. See supra n.1. On that date, the
Luzerne County Prothonotary entered judgment on the award. See Entry of
Judgment, 9/18/17. See also 42 Pa.C.S.A. § 7361(d) (“In the absence of
appeal the judgment entered on the award of arbitrators shall be enforced as
any other judgment of court.”). On October 31, 2017, Brooks filed a praecipe
for writ of execution, which was issued by the Luzerne County Clerk of Judicial
Records.
Three months later, on December 27, 2017, ERA filed a petition to open
and/or strike the judgment and to strike the writ of execution. ERA averred
in its petition that Attorney O’Malley had moved (ostensibly between August
2014, when he filed ERA’s answer and new matter, and June 2017, when
-2-
J-A28005-18
Attorney Rodgers filed certification of arbitration), and, thus, ERA argued
Attorney O’Malley never received notice of the arbitration.2 ERA also alleged
that Luzerne County never served notice of the arbitration order. See Petition
to Open and/or Strike Arbitration Judgment and to Strike Writ of Execution,
1/27/17, at 2.
In response, Brooks averred that after ERA did not appear at the
arbitration, one of the arbitrators called Attorney O’Malley as a courtesy, prior
to the arbitration, and was told by Attorney O’Malley that William E. Vinsko,
Esquire (current counsel for ERA), was representing ERA. After the
arbitration, Attorney Rodgers contacted Attorney Vinsko and informed him of
the arbitration award. On August 8, 2017, ten days prior to the end of the
30-day appeal period, Attorney Rodgers provided Attorney Vinsko with the
following documents:
1. Docketing statement, printed August 8, 2017, indicating
Attorney O’Malley was listed as counsel of record for ERA;
____________________________________________
2 We note that there is nothing in the record or in ERA’s brief indicating that
Attorney O’Malley notified the court of his change of address. Moreover, we
note that in her Answer to ERA’s Petition to Strike/Open, Brooks specifically
denied ERA’s allegation that Attorney O’Malley had moved and was not at the
address where the Certificate of Arbitration was sent. See Answer, 2/12/18,
at ¶ 5. As discussed infra, ERA failed to proceed in accordance with Pa.R.C.P.
206.4, which is required where there are disputed issues of fact in the petition
and answer. The purpose is to “create a record from which the court may
determine disputed issue of fact raised by the petition and answer. See also
Pa.R.C.P. 206.7(c) (if petitioner does not proceed in accordance with petition
and answer rules, “the petition shall be decided on petition and answer and
all averments of fact responsive to the petition and properly pleaded in the
answer shall be deemed admitted[.]”) (emphasis added).
-3-
J-A28005-18
2. Sheriff service return indicating personal service of
complaint on June 23, 2014;
3. Praecipe for entry of appearance filed by Attorney O’Malley;
4. Correspondence to Attorney O’Malley enclosing a time-
stamped copy of certification of arbitration;
5. Hearing notice from Luzerne County Clerk of Judicial
Records.
Plaintiff’s Brief in Opposition to Defendant’s Petition to Open and/or Strike,
2/12/18, at 2. Moreover, on September 5, 2017, Attorney Rodgers notified
Attorney Vinsko by letter that he intended to file a praecipe for entry of
judgment on behalf of Brooks within ten days. See Letter, 9/5/17.
The trial court denied ERA’s petition. On appeal, ERA argues the trial
court erred and abused its discretion in denying the petition to open and/or
strike. We disagree.
To obtain relief from the entry of a default judgment, the law
provides two distinct remedies. An aggrieved party may file a
petition to strike a default judgment and/or a petition to open a
default judgment, but the remedies are not interchangeable. A
petition to strike operates as a demurrer to the record and does
not involve the discretion of the court. As such, the court may
only look to the facts of record at the time the judgment was
entered to decide if the record supports the judgment. A petition
to strike can only be granted if a fatal defect appears on the face
of the record. In contrast, a petition to open judgment is an
appeal to the court’s equitable powers. It is committed to the
sound discretion of the court and will not be disturbed absent a
manifest abuse of discretion. To be successful, a petition to open
a judgment must meet the following test: the petition must be
promptly filed; the failure to appear or file a timely answer must
be excused; and, the party seeking relief must show a meritorious
defense. A party seeking to challenge the factual averments in
the record at the time the judgment was entered should file a
petition to open the judgment.
-4-
J-A28005-18
Cintas Corp. v. Lee's Cleaning Serv., Inc., 700 A.2d 915, 918 (Pa. 1997).
At the argument held before President Judge William H. Amesbury,
Attorney Vinsko confirmed that one of the arbitrators called his office and also
called Attorney O’Malley on the day of the arbitration. At that time, Attorney
Vinsko was not counsel of record. Attorney Vinsko also stated that Attorney
Rodgers “promptly provided me with documentation of what he had in terms
of service records. And while the certificate of arbitration was provided to
Attorney O’Malley by Attorney Rodgers, it wasn’t his responsibility to serve
the actual arbitration notice[.]” N.T., 2/12/18, at 3.
Six months elapsed between entry of the award in July 2017 and ERA’s
filing of its petition to open and/or strike. Even if ERA did not receive notice
of the certification of arbitration, Brooks alleged that ERA, through Attorney
Vinsko, was made aware of the arbitration award in August 2017, prior to the
expiration of the 30-day appeal period, and was made aware of Brooks’ intent
to file a praecipe for entry of final judgment in September 2017. ERA has
failed to explain the three-month delay from that point, until December 27,
2017, in seeking to open or strike the judgment. Additionally, we agree with
the court’s finding that ERA, whether through Attorney O’Malley or Attorney
Vinkso, had actual notice.
The trial court also noted that ERA failed to proceed in accordance with
Pa.R.C.P. 206.4, which is required where there are disputed issues of fact in
the petition and answer. Instead, ERA proceeded in Miscellaneous Court with
a brief and appeared for oral argument. Thus, there is no evidentiary record.
-5-
J-A28005-18
ERA did not respond to Brooks’ answer, and the record before us does not
establish a dispute exists as to Brooks’ allegations that both Attorney O’Malley
and Attorney Vinsko had actual notice of the arbitration award and that
Attorney Vinsko was made aware of Brooks’ intent to file a praecipe for entry
of final judgment. See Pa.R.C.P. 206.7(c) (if petitioner does not proceed in
accordance with petition and answer rules, “the petition shall be decided on
petition and answer and all averments of fact responsive to the petition and
properly pleaded in the answer shall be deemed admitted[.]”) (emphasis
added); see also supra, n.2. The trial court, therefore, having no evidentiary
record and finding no fatal defects of record, did not abuse its discretion in
denying ERA relief.3
ERA argues, in the alternative, that Luzerne County Local Rule 1312
precluded an appeal from the arbitration award. ERA presents this argument
in its summary of argument, but the argument section of its brief is devoid of
any discussion or analysis pertaining to this claim. Issues that are not
developed in the argument section of an appellate brief are waived. Harkins
____________________________________________
3 We note that this Court’s docket sheet indicates that Attorney Vinsko is
counsel of record for ERA. The certified docket from Luzerne County, however,
filed in this Court on June 7, 2018, lists Attorney O’Malley as counsel of record
for ERA. We also note that the record does not indicate that Attorney O’Malley
has withdrawn his appearance, nor does it include an entry of appearance for
Attorney Vinsko.
-6-
J-A28005-18
v. Calumet Realty Co., 614 A.2d 699, 703 (Pa. Super. 1992). We,
therefore, find this claim waived.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/28/2019
____________________________________________
4 We note that ERA has misapprehended the local rule. Local Rule 1312
precludes a de novo proceeding where a party failed to appear and the matter
was heard before the trial court. Here, the matter was before the arbitration
panel, not the trial court. The rule provides:
Rule 1312. Appeal
(a) Any party may appeal from the findings or award of the Board
of Arbitrators to the court. Appeals shall result in de novo
proceedings before the trial court, except where one or more
parties failed to appear and the matter was initially heard before
the trial court, as stated in the written notice required by Luz. Co.
R.C.P. No. 1306(b).
(b) The cost of appeal shall be set by court order and shall include
a sum to compensate the fees of the Arbitration Board.
(c) Simultaneously with the filing of the appeal, appellant shall file
a Certificate of Readiness for Trial with the Clerk of Judicial
Records, serve all parties and shall deliver a time-stamped copy
to the Office of Court Administration which shall assign the case
to a Judge for trial in the ordinary course.
https://www.luzernecounty.org/DocumentCenter/View/2739/Luzerne-
County-Rules-of-Civil-Procedure (last visited 1/14/19) (emphasis added).
-7-